On August 16, 2013, the Seventh Circuit Court of Appeals held for the second time that a prisoner’s request to form an atheist study group must be given the same consideration as other religious study groups.

Wisconsin prisoner James J. Kaufman, an atheist, asked to form a study group dedicated to atheism. Prison officials denied his request as one seeking to establish a nonreligious activity group. He then filed suit in federal court.

In 2005, the Seventh Circuit held that prison officials had violated Kaufman’s First Amendment rights by refusing his request to create a religious study group dedicated to atheism while allowing other religious study groups. See: Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir. 2005) (Kaufman I).

After Kaufman was transferred to the Stanley Correctional Institution, he “encountered nearly identical resistance to his efforts to create an atheist practice group.”

Prisoners requesting to participate in religious study “fill out a Religious Preference form that allows them to select one of the recognized umbrella groups, ‘no preference,’ or ‘other.’ If the inmate selects ‘other,’ he may write in a religion. If the religion he specifies does not fall within one of the seven umbrella groups, he is not permitted to attend a religious practice group, though he may practice on his own by visiting the religious library or meeting with the Chaplain individually.”

Atheism is not included on the form and prison officials do “not keep records of what religion inmates write in after selecting ‘other’ on the form.” Thus, they “do not know how many inmates have selected ‘other’ and written ‘atheist,’ ‘humanist,’ ‘secular,’ ‘freethinker,’ or another similar term.”

When Kaufman asked to start an atheism study group, the chaplain at the Stanley Correctional Institution ignored Kaufman I and “recommended denying Kaufman’s atheism group because it ‘is not viewed as a religious request.’” The warden adopted the chaplain’s recommendation.

Kaufman then filed a second lawsuit, challenging the denial under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA). He offered “evidence indicating that if an inmate writes ‘atheism,’ the prison does not recognize this as a religion at all, and instead lumps the prisoner in with the ‘No Preference’ group.”

The district court “recognized that the atheist study group is a religious one,” but found that prison officials had advanced a “legitimate secular reason for prohibiting an atheist group: Only two inmates (including Kaufman), it thought, have any interest in an atheist group, and it would be impractical to spend limited resources to create a study group for only two members.”

The Seventh Circuit reversed, reiterating its holding in Kaufman I and finding that it could not “tell, on the record as it stands, if more inmates would have designated atheism if it had been an option on the preference form.” The appellate court noted, “that is why political candidates push so hard to get their names on ballots; it is cold comfort to be told that one can run as a write-in.”

Citing a 2012 survey of prison chaplains by the Pew Research Center, the Court of Appeals found “there might be at least as many prisoners interested in an atheist group as one sees in the Pagan, Eastern Religions, or Jewish groups.” Ultimately, the Court concluded “that further exploration of the degree of interest that actually prevails at [the prison] is necessary before it will be possible to rule on Kaufman’s claim.... Only a credible survey of the inmate population, or the simple expedient of adding ‘atheist, agnostic, or humanist’ to the preference form and collecting new data, can resolve this uncertainty.”

The Seventh Circuit upheld the district court’s dismissal of Kaufman’s request for a “knowledge thought ring” as a symbol of his atheist beliefs, and of his claim alleging that atheist books he had donated were not placed in the prison library. See: Kaufman v. Pugh, 733 F.3d 692 (7th Cir. 2013).

Following remand, the defendants filed a motion for summary judgment on February 28, 2014, which remains pending. Atheism, incidentally, is one of the many faiths recognized by the U.S. military.

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